October 2018 Church & State | Featured

Pesident Donald Trump’s Sup­reme Court nominee Brett Kavanaugh wasn’t terribly forthcoming during his con­firm­ation hearings in early September, but he did voice some dangerous views on church-state separation.

“His comments confirmed what we already suspected,” said AU Legislative Director Maggie Garrett on AU’s “Wall of Separation” blog. “Kavanaugh is a serious threat to the separation of church and state, and therefore to the religious freedom of all Americans.”

Kavanaugh faced two intense days of grilling from Democratic members of the Senate Judiciary Committee on everything from reproductive justice and health care access to presidential power and immigrants’ rights. The Republican senators tended to take it easy on their party’s nominee, and it was during softball questioning by Texas Republicans Ted Cruz and John Cornyn that Kavanaugh’s views on religious freedom first came up.

Cornyn, a former attorney general of Texas, encouraged Kavanaugh to join him in lamenting their loss in Santa Fe Independent School District v. Doe, a 2000 Supreme Court case involving church-state separation. Both had filed friend-of-the-court briefs – Cornyn on behalf of the state and Kavanaugh working pro bono on behalf of two U.S. congressmen – in support of the public school-sponsored pray­ers that were broadcast during football games. The Supreme Court, with Justice Anthony Kennedy in the 6-3 majority, struck down the prayers as unconstitutional.

“I’m not asking for your opinion since likely you’ll be called upon to decide cases involving the Establishment Clause in the future,” Cornyn said. “But since we had that history together ... I thought I would just tell you that still sticks in my craw.”

“I understand, senator,” Kava­naugh said. “Certainly, cases I lost … they still stick in my craw, too.”

Kavanaugh then told Cornyn that he believes “there have been some developments” that undermine the Santa Fe decision. He specifically referenced Good News Club v. Milford Cen­tral School, a case in which he also had written a friend-of-the-court brief and that allowed a proselytizing religious club to meet in an elementary school after school hours; Greece v. Galloway, which allowed sectarian prayers during a town council meeting under certain conditions; and last year’s Trinity Lutheran Church of Col­umbia v. Comer, which allowed a church to apply for taxpayer funding for the nonreligious purpose of resurfacing a preschool playground.

None of those cases involved school-sponsored prayer, but they have been lauded by those who advocate for taxpayer funding of religious activities and for religion – particularly Christianity – to have more influence in public schools and government.

(Kavanaugh's) comments confirmed what we already suspected: Kavanaugh is a serious threat to the separation of church and state, and therefore to the religious freedom of all Americans.

~ Maggie Garrett, AU's legislative director 

“Kavanaugh’s clear disdain for Santa Fe and his willingness to use these cases to discredit the ruling confirms that he will likely reject five decades of Supreme Court jurisprudence that bars public schools from sponsoring prayer and religious activities,” AU’s Garrett wrote.

“These school prayer rulings are fundamental to religious freedom,” Garrett continued. “They protect students, particularly those of minority faiths and the nonreligious, who could otherwise be made to feel like outsiders in their own schools because of their religion. They also protect parents who want to send their children to public schools without fear that they will be coerced into participating in prayer or religious activities.”

Later, under questioning by Cruz, Kavanaugh’s claim that “some religious traditions in governmental practices are rooted sufficiently in history and tradition to be upheld” indicates he thinks it’s acceptable if people of minority faiths or the nonreligious are treated as second-class citizens by their public schools and government. He argued a similar point in his Santa Fe brief to make a case for school-sponsored prayers at graduations and at the beginning of the school day. Garrett noted that “the religions that are rooted in history and tradition will always be the majority faith, which would perpetuate the privileges of one religion – Christianity.”

As Cruz encouraged Kavanaugh to expound on religious liberty at some length, the nominee paid lip service to religious freedom for all: “[N]o matter what god you worship, or if you worship no god at all – you are protected as equally American.” He also said the First Amendment “protect(s) against coercing people into practicing a religion when they might be of a different religion, or might be of no religion at all.”

But he never uttered the phrase “separation of church and state.” That isn’t surprising, considering that a year ago when Kavanaugh spoke to the conservative think tank American Enterprise Institute, he praised former Chief Justice William Rehnquist’s remarks that the “wall metaphor was wrong as a matter of law and history.”

What Kavanaugh did say during his responses to Cruz was that “religions … have just as much right to … participate in the public programs as others do. You can’t be denied just because of your religious status.” Here he was alluding to his opinion that government should be forced to give religious organizations taxpayer dollars to fund religious activities and education.

Sen. Ted Cruz and Brett Kavanaugh

(Photo: Sen. Ted Cruz, left, questions Supreme Court nominee Brett Kavanaugh. Credit: Screenshot from C-SPAN.)

Kavanaugh has long been a proponent of government funding religious activities – from advocating for private school voucher schemes that funnel public money into private, mostly religious schools to his involvement in former President George W. Bush’s faith-based initiative, which allowed religious organizations receiving government funding to discriminate in hiring, particularly against LGBTQ people.

Kavanaugh’s role in the faith-based initiative came up during the second day of committee questioning from Sen. Dianne Feinstein (D-Calif.).

“Let me ask you a question on employment discrimination involving the LGBT community,” Feinstein began. She then referenced a 2001 email that described Kavanaugh as “walking point,” or being the point person, on Bush’s faith-based initiative. Another email from the same time period showed Kavanaugh volunteering for this role “given my general interest and my previous religious liberty work in my pre-[White House] days.”

Earlier in the day before Feinstein’s questions, Sen. Cory Booker (D-N.J.) made the controversial move of releasing more Bush-era documents that had been marked “committee confidential,” meaning they were provided to the committee but not to the general public. Those documents included email exchanges that further detailed Kavanaugh’s role in the faith-based initiative and a controversy that arose as it was being developed.

In 2001, The Washington Post wrote about how the White House had made a “‘firm commitment’ to the Salvation Army to issue a regulation” to exempt religious organizations from state and local nondiscrimination laws that protect LGBTQ employees. In return, the Salvation Army agreed to “spending $88,000 to $110,000 a month in its endeavor to boost Bush’s” faith-based initiative legislation.

In an email, Kavanaugh wrote that he had “mapped out a preliminary strategy” with others in the White House to respond to a letter from two Democratic members of Congress questioning the information in the article.

Yet when Feinstein referenced these emails and questioned his role in the program, Kavanaugh replied, “I don’t recall the specifics.”

AU’s Garrett said his response is suspect, given his deep involvement in the program: “It is less likely that Kavanaugh forgot his leading role and more likely that he didn’t want to admit that he fought to allow taxpayer-funded organizations to use religion to discriminate.”

In another email that same summer, Kavanaugh complained to colleagues about a change Republicans had negotiated to the faith-based legislation – a change that would disqualify a Christian-based drug treatment program whose program goals included religious conversion of participants.

In the same email, Kavanaugh was critical of a fellow White House official who said the changes brought the legislation “in line with the Constitution.” Kavanaugh took issue with his colleague: “To opine about what the Constitution prohibits is a very dangerous game for a White House official – particularly with the voucher case pending, which raises identical [church-state separation] issues.” Kavanaugh likely was referencing the Zelman v. Simmons-Harris case brought by Americans United and allies to challenge a private school voucher program in Ohio. The Sup­reme Court the following year would rule 5-4 (with Kennedy in the majority) that the voucher program didn’t violate the First Amendment, even though it resulted in taxpayers funding religious schools.

“[T]his Administration should never be arguing … that the Constitution actually prohibits a neutral funding scheme just because it may happen to fund religiously oriented programs as well as secular programs,” Kavanaugh continued in the email. Again, this line of thought echoes what he told Cruz during the hearings – that government could be required to fund religious entities, even if the funding is for explicitly religious activities and even if the funding subsidizes discriminatory practices.

Melissa Rogers, who served as the director of the Office of Faith-Based and Neighborhood Partnerships un­der President Barack Obama, took to Twitter the day these emails were released to express her concerns about Kavanaugh’s extreme views.

“Current law prohibits [organizations] from subsidizing explicitly religious activities w/direct govt aid, but Kavanaugh appears to disagree,” Rogers tweeted. She posted a quotation from founding father James Madison warning about the dangers of taxing Americans for religious purposes before continuing in her own words: “Also, what govt funds, it regulates, even if what it funds is religious. Do we want govt to regulate prayer, worship & Bible study? No. Plus, govt subsidies for certain sacred texts will provoke an outcry, ultimately resulting in de facto govt preferences for some faiths.”

Katherine Stewart, an investigative journalist and member of Americans United’s National Leadership Council, wrote in The New York Times that government showing preference is not the concern of Kavanaugh, Trump and their fundamentalist allies. Indeed, it’s exactly what they’re seeking.

“What senators Cornyn, Cruz and other religious conservatives mean by ‘religious liberty’ is its opposite,” Stewart wrote. “Let’s call it by its true name: religious privilege, not religious liberty. Today’s Christian nationalists want the ability to override the law where it conflicts with their religious beliefs.”

Let’s call it by its true name: religious privilege, not religious liberty. Today’s Christian nationalists want the ability to override the law where it conflicts with their religious beliefs.

~ Katherine Stewart, investigative journalist and member of AU’s National Leadership Council

Journalist Sarah Posner, writing for The Washington Post, agreed: “Kavanaugh’s alleged emphasis on religious liberty is a political wet kiss for Trump. It shows Trump’s base that they were right in voting for him, even as the White House is embroiled in multiple unfolding scandals without precedent in American history.”

Although Senate Democrats tried to argue that Kavanaugh’s confirmation should be delayed until all of his Bush-era documents were released and reviewed and until special counsel Robert Mueller completes his investigation, Senate Republicans showed no sign of slowing down the process.

When the hearings closed, several closely watched senators had not yet announced which way they would vote. Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska were seen as potential blocks to Kavanaugh’s confirmation because they have been supportive of abortion rights. But with the Senate divided 51-49 in favor of Republicans, in order to scuttle Kavanaugh’s confirmation, both women would have to vote against him, as would red-state Democratic Sens. Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia – all of whom voted to confirm Trump appointee Neil Gorsuch last year.

On the final day of Kavanaugh’s confirmation hearings, several witnesses tried to drive home for senators the threat Kavanaugh poses to Americans’ rights and liberties. Among the people testifying was Alicia Baker, an ordained minister from Indiana and a plaintiff in a lawsuit filed a year ago by Americans United and allies to challenge the Trump administration’s proposed rules that would allow employers and universities to deny women access to birth control.

Alicia Baker

(Photo: Alicia Baker testifies before the Senate Judiciary Committee. Credit: Screenshot from C-SPAN.)

Baker spoke about her experience of receiving an unexpected $1,200 bill for her IUD after her employer’s insurance provider refused to pay the bill because the provider had a religious objection to birth control. (Baker since has taken a new job whose insurance provider follows the law and provides health insurance with birth control coverage, so AU dismissed the lawsuit.)

Her voice ringing with emotion, Baker told senators she doesn’t want any other women to face the financial burden and the difficult life decisions she and her husband, Josh, encountered when they were stuck with that bill while planning their wedding, saving for their first home and paying off their student loans.

“I still feel a pit in my stomach when I remember the stress and anxiety that we went through just as we were starting our new life together, but I know I am fortunate: I was ultimately able to pay that bill,” Baker said.

“But what happens to those who cannot pay for their birth control? What happens to those who face an impossible choice between getting the health care they need and putting food on the table, or paying for childcare or staying in school?” she continued. “If Judge Kavanaugh is confirmed to the Supreme Court, access to affordable birth control will be in jeopardy.”

As a federal appeals court judge, Kavanaugh indicated he would permit employers to use religious beliefs to obstruct women’s access to birth control – a view that could also indicate he’d permit religion-based discrimination against the LGBTQ community, religious minorities and others.

“If Judge Kavanaugh had his way, courts would give free rein to those who claim their religious beliefs override the law,” Baker said. “As a person of deep faith, I would never impose my religious beliefs on anyone and no one else should either. My religious beliefs are separate from the law, and that’s how it should be.

“But Judge Kavanaugh’s record shows he does not respect this critical separation,” she said. “I urge this committee to block his nomination to the Supreme Court.”

If Judge Kavanaugh had his way, courts would give free rein to those who claim their religious beliefs override the law. As a person of deep faith, I would never impose my religious beliefs on anyone and no one else should either. My religious beliefs are separate from the law, and that’s how it should be.

~ Alicia Baker